There’s a long history to this case, with litigation itself spanning back 15 years, and the squabbles before that spanning back to the mid-80s. In short, a state court invalidated the Redevelopment Authority’s attempted exercise of its eminent domain power because the Authority had improperly delegated that authority to a private developer. The decision hinged on the fact that development agreements allowed the private developer to choose the specific time when the Authority would initiate condemnation proceedings against R&J. The state court awarded R&J Holding over $550,000 in attorneys fees and other litigation costs.

R&J then filed a Sec 1983 case claiming a taking, because Pennsylvania state law transferred title from the land owner to the Authority as soon as the Authority initiated condemnation proceedings against R&J. The federal court kicked the case out under Williamson County ripeness rules. For those who are not familiar with Williamson County, it essentially stands for the premise that a federal court will not hear a takings claim until a plaintiff first goes through state inverse condemnation proceedings first. Williamson County v. Hamilton Bank, 473 U.S. 172 (1985).

R&J then filed its inverse condemnation in state court, while at the same time invoking an England reservation to preserve their federal claims in federal court. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964). Eventually, Pennsylvania state courts ruled that state law does not entitle a prevailing condemnee to compensatory damages, but only to out-of-pocket expenses, which the owner had already received (the 550k).

A dejected R&J then returned to federal court filing the case at issue here. R&J asserted, among other things, a Fifth Amendment takings claim. The Authority moved to dismiss, arguing that the takings claim was barred by the doctrine of claim and issue preclusion. The district court agreed.

In December 2011, the Third Circuit reversed. Under the Full Faith and Credit statue, 28 USC 1738, “judicial proceeding … shall have the same full faith and credit in every court within the United States … as they have by law or usage in the courts of” the state from which they emerged. The Supreme Court in San Remo Hotel v. City & Cnty. Of San Francisco, 545 U.S. 323 (2005), added that it “has long been understood to encompass the doctrines of [claim and issue preclusion.” What the Third Circuit has done in this case is rely on the language in San Remo to create a rule that claim/issue preclusion analysis must be conducted utilizing the issue/claim preclusion rules that state law dictates. Under Pennsylvania common law, issue/claim preclusion analysis includes the factor that for preclusion to apply, the defendant (in this case, the Authority) must object to any attempt by the Plaintiff to reserve their federal claims. In this case the Third Circuit ruled that because the Authority did not object to R&J’s England reservation, issue/claim preclusion did not apply.

This decision still flies in the face of established Supreme Court precedent. In San Remo, it is seemingly clear that its language is not intended to force federal courts to use state law issue/claim preclusion doctrines to resolve takings claims. In addition, San Remo also makes it clear that an England reservation is intended in situations where the state law claim is distinct from the federal law claim, unlike here.

The Williamson doctrine, issue/claim preclusion, and the England reservation, are some of the more controversial issues in land use (for plaintiffs). However, at the end of the day, there needs to be finality to litigation. This case has already taken 15 years and cost the Authority countless dollars. Allowing two bites at the apple will only cost the Authority more time and money. The Supreme Court itself states in cases like these “we apply our normal assumption that the weighty interests in finality and comity trump the interest in giving losing litigants access to an additional appellate tribunal.” San Remo.

Local Governments Should Take Immediate Action

President Obama signed into law a bill passed by Congress last week that extended unemployment benefits and the payroll tax deduction. The bill, HR 3630, includes other provisions relevant to local government, such as restrictions on siting of wireless facilities and changes to the public safety radio spectrum. The new law, signed by the President on Wednesday, is effective immediately. Local governments should take immediate action to review and possibly amend local ordinances to protect their interests and avoid lawsuits.

Under Section 332(c)(7) of the Telecommunications Act, local governments have broad authority to control the siting of cellular and other wireless towers, antennas, and related facilities. Many cities and counties have ordinances that govern both the initial placement and modification of wireless facilities. The new law may require changes to those rules. It mandates local approval of certain applications for modification of “an existing wireless tower or base station.”

The law states that “Notwithstanding [Section 332(c)(7)] or any other provision of law, a state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

Local governments should anticipate that representatives of tower companies will claim that cities and counties must approve many pending collocation applications unless the expansion adds significantly to the height or width of a facility. Entities that have placed wireless facilities on public light poles and other public property may argue they can now expand their facilities without review by the local government. We expect providers to move quickly to challenge local ordinances that consider any collocation factor other than “physical dimensions.” More aggressive applicants may claim the failure to “approve” subjects jurisdictions to damages and attorneys fees for failure to act.

Don’t be intimidated, but do look seriously at your ordinance. The law does not prevent a locality from reviewing a proposed installation. There are significant ambiguities in the new law that undercut claims you “must act” on every collocation application.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

The City’s roadside solicitation law was enacted back in the 1980s because of all the traffic/safety problems associated with day laborers soliciting employment from moving cars. The law was not limited to day laborers, and barred any individual from standing on a street or highway and soliciting, or attempting to solicit employment, business, or contributions from an occupant of any motor vehicle. The definition of street included sidewalks, parkways, medians, alleys and curbs. The Ninth Circuit ruled that the City’s solicitation ordinance was unconstitutional in that although it was content neutral, it was not narrowly tailored. The Ninth Circuit decision features one of the harshest dissents we’ve read. It’s worth reading.

Thirteen members of IMLA recently participated in panel presentations at the World Jurist Association’s 24th Biennial Congress on the Law of the World. The WJA Congress was held October 23 – 28, 2011, in the Congress Centre of Prague, Czech Republic, and centered on the international theme “National Legal Cultures in a Globalized World.”

The first panel, “Protecting the Public – Local Law,” featured Robert Alfton who spoke on Labor Law in the Public Sector, Aashish Srivastava who addressed Cyberbullying Laws in Australia, and concluded with a joint presentation by Iris Jones and Patricia Lynch, who discussed the Need for a Global Response to Cyberbullying.

The second panel, “Governance in the Public Sector,” featured Phillip Sparkes who addressed The Ethical Obligation of Government Legal Advisors, a joint presentation by Charles W. Thompson, Jr. and Robert N. Hills on Graffiti Vandalism in America – Shaping the Municipal Response, and concluded with a presentation by Susan Moore on Innovation in ADR to Resolve Political Impasses.

The third panel, “Stewardship, Sustainable Use and Development of Land and Resources,” featured Edward Sullivan who discussed Land Use and Forestry Protection, Timothy D. Hollister who addressed Black and White Issues in the Evolution of Green Building Standards, and Benjamin E. Griffith who gave a presentation Fracking for Shale Gas – Energy Security and Sustainable Water
Resources.

The fourth panel adhered to the same overall theme of the third and featured Julian Grant who discussed Ownership and Care of the Beaches and Coastal Regions of the U.S. and the World, Steven R. Meyers who addressed Public Private Partnerships in the Global Economy, and Dwight H. Merriam who gave a presentation on Private Residential Communities – A Cross Cultural Comparison.

THE WJA World Congress was attended by over 350 members and guests representing over 50 nations. Support and staffing was provided by WJA staff, the Czech Bar Association, ICC Paris and National Committees of the region, as well as local law faculties in Prague and Plzen and IMLA.

The diversity of the many panels was matched only by the breadth of the legal topics and issues addressed during the five day Congress.The participation of IMLA members as speakers and presenters at the WJA 24th Biennial Congress signifies the continuation of a rich and meaningful collaboration between IMLA and WJA dating back to over 2 decades.

As local government lawyers, most of us are familiar with RLUIPA and what keeps us up at night is the question: What do institutionalized persons have to do with religious land use? [RLUIPA – Religious Land Use and Institutionalized Persons Act].

It’s an interesting case, and if SCOTUS grants cert, it might be the case that clears up some of the ambiguity of RLUIPA. The Questions Presented in the cert petition are:

1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a “substantial burden” under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006).

2. Whether case-by-case analysis of a land use application constitutes an “individualized assessment” under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(2)(C) (2006).

3. Whether neutral, generally applicable planning principles may be a “compelling interest” of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§2000cc(a)(1)(A) (2006).

This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.